Tennessee lawmakers seek to make autopsy results secret

Under the proposed bill, the results of government autopsies in all those situations would be kept secret except for "those who need them for official purposes."

Author:
Natalie Neysa Alund, USA TODAY NETWORK – Tennessee

Published:03/06/18

Despite a strong push to keep the records public in Tennessee, two Republican lawmakers are sponsoring a bill that would make the results of autopsies conducted by the state and county medical examiners secret.

The legislation is sponsored by Rep. Eddie Smith, R-Knoxville, and Sen. Joey Hensley, R-Hohenwald, a physician who also is the medical examiner for Lewis County. Both say having the forensic findings available to the public can be difficult for family members of the dead and means that family medical conditions may become public.

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Although autopsy reports can be sensitive, critics of the bill say the reports are also vital resources to help ensure government accountability and that those in the criminal justice system adequately perform their duties, especially when suspicious deaths are involved.

"It's important autopsy reports remain open in cases when there are questions about the death," said Deborah Fisher, executive director of the Tennessee Coalition for Open Government. "This bill closes everything, things that can be used for accountability."

The bill, approved by the House health subcommittee last week, seeks to keep confidential "the records of the results of investigation, of post-mortem examinations, of the findings of autopsies and toxicological laboratory examinations, including certified reports of the toxicological laboratory examinations performed by the testing laboratory.”

Smith, who works in event and production management, said the bill was brought to him by Dr. Darinka Mileusnic-Polchan, the county medical examiner for Knox and Anderson counties.

Smith met Monday with Carol Daniels, executive director of the Tennessee Press Association. After that meeting, he said his intent was to protect confidential medical information about family members that was not directly related to a deceased’s cause of death.

He said he wanted to work with government transparency advocates to reach an agreement on the bill.

Speaking to the subcommittee last week, Mileusnic-Polchan testified about a case she had several years ago involving the death of a baby who had a herpes infection passed along from the mother.

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Mileusnic-Polchan said the mother had been in an abusive relationship, had a second chance in life, and in her own words, knew she had killed her newborn. The sum, she said, was devastating enough without having everyone, including family and neighbors, to learn she has herpes.

Under the proposed bill, the results of government autopsies in all those situations would be kept secret except for “those who need them for official purposes,” said John Lott with the Knox County Regional Forensics Center. He also spoke to the subcommittee alongside State Chief Medical Examiner Julia Goodin, who said she supported the bill.

Current law already protects medical records of the dead. Those are not public records, along with "law enforcement investigative reports, and photographs, video and other images of deceased persons.”

Tennessee law allows a county medical examiner to perform autopsies in these cases:

Homicide

Suspected homicide

Suicide

A violent, unnatural or suspicious death

Unexpected apparent natural death in adults

Sudden unexpected infant and child deaths

Deaths believed to represent a threat to public health or safety

Executed prisoners

But Mileusnic-Polchan says some cases like homicides, suicides and elder abuse deaths are privileged information and should be kept confidential because they're already painful enough for families without having "more information out there.”

As an example, she referenced the brutal death of a young couple in Knoxville about 10 years ago.

"I know it’s going to go through the courts, but … the brutality of what they went through, this young couple, was just too much even for me to bear," she said. "Why does it need to be out there in the public?”

But Fisher said the findings help to ensure "the account" of what happened.

"It could be the autopsy shows something completely different," Fisher said in a telephone interview Monday. "It clears up exactly what happened, and that's important to have. It helps get the truth out there."

In 2015, the Knoxville News Sentinel used an autopsy report to disclose that a parolee was running away from a Knoxville police officer when shot. Authorities had said the officer was in a life-or-death struggle with the man. But the autopsy showed six gunshot wounds from behind, all but one from more than 3 feet away.

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The Commercial Appeal in Memphis used an autopsy report two decades ago to reveal that a Memphis Police Department SWAT team shot a 7-year-old through the head during a botched raid at a public housing complex. If the reports had been closed, this would have never come to light.

Fisher says the public should have access to the cause and manner of death in situations in which the government requires an autopsy.

"The government pays for them — uses taxpayer dollars," Fisher said. "They are done because the state thinks there's a public interest in determining the cause of death either for public safety reasons or public heath reasons."

Last year The Tennessean used autopsy reports on a story about how opioid deaths are underreported. It also used autopsy reports to show that dangerous new drugs are on the uptick in the state.

In 2011 the nonprofit reporting organization ProPublica found more than three dozen cases in which neglect, abuse and even murder of seniors in nursing homes had escaped the notice of authorities. The nationwide investigation relied heavily on autopsy reports and was part of a larger examination of shortcomings in the nation’s coroner and medical examiner offices.

Regarding Mileusnic-Polchan's mention of the newborn baby case, Fisher made note that to her knowledge, the media did not even report on it.

"Just because it's a public record doesn't mean the news media is going to report on it," Fisher said.

The proposed legislation goes Tuesday to the House Health Committee to be voted on.

Reach Natalie Neysa Alund at nalund@tennessean.com and on Twitter @nataliealund.